CMS Changes Policy Regarding Reporting of Challenged Deficiencies

The Centers for Medicare and Medicaid Services (“CMS”) is responsible for regulating and overseeing skilled nursing facilities (“SNFs”) that participate in the Medicare and/or Medicaid programs. To ensure that SNFs are in substantial compliance with Medicare’s Requirements of Participation (“ROP”), they must undergo an annual survey not more than every 15 months. Additionally, whenever there is a complaint against a SNF, a complaint survey must occur. CMS contracts with a state’s department of health to conduct the annual and complaint surveys.

When surveyors claim noncompliance exists regarding the ROP found at 42 CFR part 483, they “cite” a deficiency. A “deficiency” is a violation of a specific federal regulation. Likewise, when a SNF believes that surveyors got it wrong (i.e., that there is no deficiency), they have the right to file an Informal Dispute Resolution (“IDR”) to challenge the alleged deficiency. Additionally, when CMS imposes and escrows a civil money penalty based on the citation, a SNF can dispute that through the related Independent Informal Dispute Resolution (“IIDR”) process. Although there are differences between the IDR and IIDR processes, for purposes of a new — and controversial — CMS policy, they are treated the same.

Until recently, when a SNF disputed a citation, it was not posted on CMS’s Nursing Home Care Compare website while the IDR/IIDR was pending. That changed on January 18, 2023, when CMS announced a change to its long-standing policy and stated that it would begin displaying all disputed citations on its website, effective January 25, 2023. QSO-23-05-NH. CMS indicated it would remove displayed deficiencies if a provider was successful — as they frequently are — at IDR/IIDR. Herein lies the problem.

In a related press release, CMS notes that “approximately 75% [of IDR/IIDRs] do not change after completion of the IDR/IIDR process.” The corollary is that 25% of IDR/IIDRs demonstrate that the surveyors got it wrong and there was no basis for citing a deficiency. Further, CMS acknowledges that it can take anywhere from 60 days to more than six months for a SNF to get the results of the IDR/IIDR. Based on CMS’s statistics, 25% of SNFs that dispute alleged deficiencies will be saddled for months with an unsupportable and publicly available blemish on CMS’s official website.

CMS states that it is making the change in order to be more “transparent.” However, as noted by Karl Steinberg, MD, CMD, multi-facility medical director and chief medical officer, as well the immediate past president of the Society for Long-Term Care and Post-Acute Medicine (AMDA), “I am a strong believer in transparency and accountability in nursing homes.” Dr. Steinberg adds, “But I have seen enough erroneous and misleading deficiencies imposed by state agencies to be very concerned about this policy, which seems to gut the whole concept of ‘innocent until proven guilty.'”

The purpose of the Care Compare website is to provide consumers with information when they must make the often-stressful decision regarding which SNF best meets the needs of their loved one. It is not difficult to imagine families seeing an alleged deficiency posted on Care Compare for a SNF that they would otherwise place a loved one in and deciding against that nursing home. Such is even more likely if the alleged deficiency is at an actual harm or “immediate jeopardy” level and relates to quality-of-care issues such as pressure sores, nutrition, falls or elopements. Such a posted deficiency would give most families pause and cause for concern.

CMS sates that it will remove a posted deficiency when it is determined to be unsustainable. However, that may be six months later, long after a prospective resident has been placed elsewhere and the reputation of the SNF has been sullied. CMS’s new policy places a cloud over a SNF and it is difficult to un-ring that bell.

By the time CMS removes the deficiencies from Care Compare months after they are publicly displayed, the damage may have been done. And the SNF, its staff —and more importantly –— the residents and their families that CMS claims to  protect may have been disadvantaged.

“LeadingAge urges CMS to rescind this new policy and preserve the nursing homes’ right to informal dispute resolution.” said Katie Smith Sloan, president and CEO of LeadingAge. “Transparency is most beneficial when the information is accurate and fair.”

Well-intentioned arguments exist on both sides of this issue. One thing all stakeholders should agree with is that reducing the inordinate amount of time to receive the results of an IDR/IIDR would be a significant improvement to the IDR/IIDR process.

In its January 18, 2023, press release, CMS notes that it will now display challenged deficiencies so that consumers can be “better informed.” But how “informed” can someone be if they are relying on information that is ultimately determined to be inaccurate and faulty?